Ishwar Dass And Another v. Mansha Ram And Others

JUDGMENT

1. This regular second appeal has been filed by the plaintiffs/appellants against the judgments and decrees of the Courts below whereby the suit filed by the plaintiffs was dismissed by the trial Court and the appeal filed by one of the plaintiffs, namely, Ishwar Dass was dismissed by the learned District Judge.

2. The plaintiffs had filed a suit for declaration and permanent injunction against the defendants with the allegations that the plaintiffs and the defendants were joint owners in possession of the suit land and the orders dated 2-6-1987, 21-2-1989 and 8-11-1989 passed by the Assistant Collector, Collector and the Divisional Commissioner, respectively, were illegal and without jurisdiction and the same would have no effect over the right, title or interest of the plaintiffs and that the defendants be restrained from getting possession of the suit land as per the order of partition and in the alternative the plaintiffs sought joint possession over the suit land. It was alleged that the suit land was jointly owned and possessed by the parties and that the defendants had filed an application for partition before the Assistant Collector and in the partition proceedings, the plaintiffs were proceeded against ex parte and an ex parte order of partition was passed by the Assistant Collector, which was upheld in appeal by the Collector and the Commissioner. It was alleged that the Assistant Collector had passed the order of partition without following and complying with the mode of partition. In the written statement, the defendants took up the plea that the suit land had been partitioned at the spot as per the mode of partition and the order passed by the Assistant Collector, which was stated to be legal and valid and similar was the position in respect of the orders passed by the Collector and the Commissioner.

3. After hearing both the sides and perusing the record, the trial Court dismissed the suit of the plaintiffs, holding that the suit land had been partitioned between the parties and that the orders passed by the Assistant Collector, Collector and the Commissioner were perfectly legal and valid. The appeal filed by one of the plaintiffs was dismissed by the learned District Judge, upholding the findings of the trial Court. Aggrieved against the same, both the plaintiffs have filed the present Regular second Appeal in this Court.

4. After hearing the learned counsel and perusing the record, in my opinion, there is no merit in this appeal and the same is liable to be dismissed.

5. The only ground taken before me by the learned counsel for the plaintiffs/appellants is that the plaintiffs/appellants had not been served in the partition proceedings before the Assistant Collector in accordance with law, inasmuch as the provisions of Order 5, C.P.C had not been complied with and that the Assistant Collector had illegally proceeded ex parte against the plaintiffs/appellants in the partition proceedings. However, I find no force in this submission of the learned counsel for the plaintiffs/appellants. As referred to above, the partition proceedings were pending before the Assistant Collector and not before a Civil Court. The provisions of Order 5, CPC would have no application to the partition proceedings which were pending before the Assistant Collector. On the other hand, the provisions of Section 21 of the Himachal Pradesh Land Revenue Act 1953 would apply to the partition proceedings which were pending before the Assistant Collector. Section 21 of the said Act reads as under:—

“21. Mode of service of summons.—

(1) A summons issued by a Revenue Officer shall if practicable, be served (a) personally on the person to whom it is addressed or failing him (b) his recognised agent (* * *)

(2) If service cannot be so made, or if acceptance of service so made is refused, the summons may be served by posting a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or if that person does not reside in the district in which the Revenue Officer is employed and the case to which the summons relates has reference to land in that district, then by posting a copy of the summons on some conspicuous place in or near the estate wherein the land is situated.

(3) If the summons relates to a case in which person having the same interest are so numerous that personal service on all of them is not reasonably practicable, it may, if the Revenue Officer so directs, be served by delivery of a copy thereof to such of those persons as the Revenue Officer nominates in this behalf and by proclamation of the contents thereof for the information of the other persons interested.

(4) A summons may, if the Revenue Officer so directs, be served on the persons named therein either in addition to, or in substitution for, any other mode of service, by forwarding the summons by post in a letter addressed to the person and registered under Part III of the Indian Post Office Act, 1898.

(5) When a summon is forwarded in a letter, and it is proved that the letter was properly addressed and duly posted and registered, the Revenue Officer may presume that the summon was served at the time when the letter would be delivered in the ordinary course of post.”

6. From a perusal of the above, it would be clear that where the summons have been issued by the revenue officer, the same shall if practicable be served personally on the person to whom it is addressed or upon his recognised agent. It is further provided therein that if service cannot be so made, or if acceptance of notice so made is refused, the summons may be served by positing a copy thereof at the usual or last known place of residence of the person to whom the summons have been addressed. In the present case, the service had been duly effected upon the appellants by following the procedure provided under Section 21 of the aforesaid Act. Under these circumstances, in my opinion, it can not be said that the plaintiffs/appellants had not been served in the partition proceedings before the Assistant Collector in accordance with law, merely because provisions of Order 5, CPC had not been complied with. As referred to above, in the partition proceedings pending before the Assistant Collector, the provisions of Section 21 of the said Act would apply and not the provisions of Order 5, CPC especially when there is specific provision regarding mode of service of summons provided under the provisions of Himachal Pradesh Land Revenue Act, 1953.

7. Once it is found that the plaintiffs/appellants were duly served with the summons in the partition proceedings before the Assistant Collector, in my opinion, it cannot be said that the orders passed by the revenue authorities in the partition proceedings suffered from any legal infirmity, which may give jurisdiction to the Civil Court. In fact under Chapter IX of the aforesaid Act revenue officers have been empowered to entertain the partition proceedings in respect of the agricultural land. Section 171 of the aforesaid Act excludes the jurisdiction of the Civil Court in the matters within the jurisdiction of the revenue officers, where the revenue officer has exercised any of the powers vested in him under the said Act. It is also provided therein that a Civil Court shall not exercise jurisdiction in respect of any claim for partition of an estate etc. or any question connected therewith or arising out of the partition proceedings, not being a question of title. In this view of the matter, in my opinion, both the Courts below were perfectly justified in dismissing the suit of the plaintiffs, whereby they had challenged the legality of the orders passed by the Assistant Collector, Collector and the Divisional Commissioner in respect of the partition proceedings.

8. In view of the detailed discussion above, in my opinion, there is no merit in this appeal, especially when no question of law much less substantial question of law arises for determination in this appeal. Accordingly, finding no merit in the appeal, the same is hereby dismissed.

CMP No. 427 of 2004:

9. In view of the dismissal of the main appeal, this application also stands dismissed and interim order dated 30-6-2004 shall stand vacated.

Appeal dismissed.